Badoni v. Higginson

638 F.2d 172, 11 Envtl. L. Rep. (Envtl. Law Inst.) 20, 15 ERC (BNA) 1305, 1980 U.S. App. LEXIS 12661
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 3, 1980
DocketNo. 78-1517
StatusPublished
Cited by21 cases

This text of 638 F.2d 172 (Badoni v. Higginson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Badoni v. Higginson, 638 F.2d 172, 11 Envtl. L. Rep. (Envtl. Law Inst.) 20, 15 ERC (BNA) 1305, 1980 U.S. App. LEXIS 12661 (10th Cir. 1980).

Opinion

LOGAN, Circuit Judge.

This is an appeal from an order granting summary judgment, which effectively denied relief to Indian plaintiffs making constitutional and statutory claims against federal officials. We are asked to determine whether the religion clauses of the First Amendment apply to the government’s management of the Rainbow Bridge National Monument and the Glen Canyon Dam and Reservoir, and whether an environmental impact statement concerning operation of the Glen Canyon Dam and Reservoir is required under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The trial court’s order and opinion is reported at 455 F.Supp. 641 (D.Utah 1977).

The Rainbow Bridge National Monument is a 160-acre tract of land in southern Utah, set aside by executive order for scientific and historical purposes. 36 Stat. 2703 (1910). Within this parcel is Rainbow Bridge, a great sandstone arch 309 feet high with a span of 278 feet. The Monument, which is surrounded by the Navajo reservation, is administered by the National Park Service. Glen Canyon Dam, located on the Colorado River fifty-eight miles below the Monument, is a 710-foot high structure built pursuant to Congressional authorization.1 See 43 U.S.C. § 620. Glen Canyon Reservoir, known as Lake Powell, formed behind the dam after its completion in 1963. By 1970 the lake had entered the 160-acre tract of the Monument and by 1977 the water had a peak depth of 20.9 feet directly under the Bridge. If the lake fills to its maximum capacity, the water apparently will be 46 feet deep under the Bridge.

Glen Canyon Dam and Lake Powell are operated by the Bureau of Reclamation under the direction of the Secretary of the Interior. 43 U.S.C. § 620. The federal lands adjacent to Lake Powell, other than the Monument, comprise the Glen Canyon National Recreation Area, see 16 U.S.C. § 460dd, and are administered by the National Park Service. See id. §§ 1, 460dd-3.

Prior to the creation of Lake Powell, Rainbow Bridge National Monument was isolated and was visited by few tourists. The lake now provides convenient access to the Monument. Boats licensed by the Commissioner of the Bureau of Reclamation and the Director of the National Park Service bring tourists to the Monument. Docking facilities have been constructed near the Bridge to serve tour boats and private boats.2 Visitors to the Monument are subject to the regulation and control of the National Park Service. See 16 U.S.C. § 1 ef seq.

The individual plaintiffs are Indians residing in the general area of Rainbow Bridge National Monument in southern Utah and are enrolled members of the Navajo Tribe. Three of these plaintiffs are recognized among their people as medicine men, “religious leaders of considerable stature among the Navajo, learned in Navajo history, mythology and culture, and practitioners of traditional rites and ceremonies of ancient origin.” 455 F.Supp. at 642. Three plaintiffs are Navajo chapters, which are local organizations of the Navajo Na[176]*176tion, each consisting of the adult members of its respective community.

In 1974 plaintiffs commenced this action for declaratory and injunctive relief against the Secretary of the Interior, the Commissioner of the Bureau of Reclamation and the Director of the National Park Service.3 In their amended complaint plaintiffs asserted two claims for relief relevant to this appeal: First, that defendants’ operation of Glen Canyon Dam and Reservoir and management of Rainbow Bridge National Monument violated plaintiffs’ rights under the Free Exercise Clause of the First Amendment; second, that defendants are required by 42 U.S.C. § 4332(2)(C) to provide an environmental impact statement concerning the operation of Glen Canyon Dam and Reservoir and that the continuing operation of the Dam and Reservoir without such a statement violates 42 U.S.C. §§ 4331-35. After consideration of the pleadings, affidavits and discovery documents in the record, the trial court granted defendants’ motions for summary judgment, from which this appeal was taken.

I

In essence, plaintiffs’ free exercise claim is that government action has infringed the practice of their religion in two respects:

(1) by impounding water to form Lake Powell, the government has drowned some of plaintiffs’ gods and denied plaintiffs access to a prayer spot sacred to them; and

(2) by allowing tourists to visit Rainbow Bridge, the government has permitted desecration of the sacred nature of the site and has denied plaintiffs’ right to conduct religious ceremonies at the prayer spot.

The trial court gave two reasons for granting summary judgment against plaintiffs. First, the court ruled that plaintiffs do not have a cognizable free exercise claim because they have no property interest in the Monument. 455 F.Supp. at 644 — 45. In the alternative, it held that the federal government’s interests in the Glen Canyon Dam and Reservoir as a major water and power project outweigh plaintiffs’ religious interests in the Monument. 455 F.Supp. at 645-47. While we affirm the summary judgment in defendants’ favor, our reasoning differs somewhat from that of the trial court.

At the outset, we reject the conclusion that plaintiffs’ lack of property rights in the Monument is determinative. The government must manage its property in a manner that does not offend the Constitution. See Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir. 1980) (lack of property interest not conclusive, but is a factor in weighing free exercise and competing interests). We must look to the nature of the government action and the quality of plaintiffs’ positions to determine whether they have stated a free exercise claim. See Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972).

Analysis of a free exercise claim involves a two-step process. We first determine whether government action creates a burden on the exercise of plaintiffs’ religion. “[I]t is necessary in a free exercise case to show the coercive effect of the enactment as it operates against ... the practice of [their] religion.” School Dist. of Abington v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963). The practice allegedly infringed upon must be based on a system of belief that is religious, see, e. g., Wisconsin v. Yoder, 406 U.S. at 215-16, 92 S.Ct. at 1533; Kennedy v. Meacham, 540 F.2d 1057, 1060-61 (10th Cir. 1976), and sincerely held by the person asserting the infringement, see, e. g., United States v. Ballard,

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Badoni v. Higginson
638 F.2d 172 (Tenth Circuit, 1980)

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638 F.2d 172, 11 Envtl. L. Rep. (Envtl. Law Inst.) 20, 15 ERC (BNA) 1305, 1980 U.S. App. LEXIS 12661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/badoni-v-higginson-ca10-1980.